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2005
The Code Napoléon, Buried but Ruling in Latin
America
M C. Mirow
Florida International University College of Law, [email protected]
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M C. Mirow, The Code Napoléon, Buried but Ruling in Latin America , 33 Denv. J. Int'l L. & Pol'y 179 (2005).
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THE CODE NAPOLEON: BURIED BUT RULING IN LATIN
AMERICA
M.C.MIRow·
"The Liberator President is highly aware of the wisdom with which the Code
Napoleon was drafted. " 1
When lawyers from different countries meet, they are likely to exchange
almost phatic pleasantries about legal practice and their legal systems. Latin
American lawyers visiting the United States invariably respond to inquiries about
these matters with the observation that their system is based on the Napoleonic
Code. This statement, of course, does not mean the same thing to a U.S. lawyer as
it does to any European lawyer. It is an assertion of historically and culturally
rooted equality or even superiority to the Anglo-American common law system.
This short-hand reference to the French Civil Code of 1804 is a gross oversimplification, but one that continues today. Indeed, noted comparative lawyers
and legal historians are partly to blame for such statements. In the United States,
because our introductory law school literature tends to perpetuate it,2 lawyers are
apt to believe this characterization of Latin American law. Echoing the great
European comparativists, general Latin American literature also continues this
description. 3 It is a convenient short-hand comment, but unsoundly inaccurate. To
say that Latin American law is centered on the Code Napoleon is similar to saying
that United States law is based on Blackstone's Commentaries and that Belgian
law is based on Justinian's Digest. There is some truth and some falsity to these
statements and this study proposes to explore the historical and present-day
significance of the Code in Latin America, particularly the Spanish-speaking
countries.
' Associate Professor of Law and founding faculty member, Florida International University College of
Law, Miami, F.lorida. B.A., Boston University; J.D., Cornell University; Ph.D. (law). Cambridge
University; Ph.D. (law), Leiden University. The author gratefully acknowledges a Provost's Office/FIU
Foundation research award and an F!U College of Law research grant which funded this study. Jorge
Esquirol, German Morales, and Ediberto Roman provided many helpful comments. A French version
of this study will appear in LE CODE CIVIL, 1804-2004, ENTRE / US COMMUNE ET DROIT PRIVE
EUROPEEN (A.A. Wijffels, ed., 2005).
I. Letter from Jose D. Espinosa, General Secretary to Bolivar, to Jose Manuel Restrepo, Minister
of the Interior (May 13, 1829) (in Manuel Perez Vila, El C6digo Napo/e611 en la Gra11 Colombia, 11na
iniciativa trasce11de11ta/ de/ Libertador, 19 REVISTA DE LA SOCIEDAD BOLIVARIANA DE VENEZUELA
819, 823 (1960)). For Bolivar and the Code Napoleo11, see generally M.C. Mirow, The Power of
Codification i11 Latin America: Sim611 Bolivar a11d the Code Napo/eo11, 8 TuL. J. lNT'L & COMP. L. 83
(2000).
2. See JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL
SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 58 (2d ed. 1985).
3. See Jorge L. Esquirol, The Fictions of Lati11 America11 Law (Part/), 1997 UTAH L. REV. 425,
432 (1997).
179
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DENV. J. INT'L L. & POL'Y
VOL. 33:2
In 1909, Frederic William Maitland, one of England's great historians,
cogently observed that, within the common law system, " [t]he forms of action we
have buried, but they still rule us from their graves. " 4 The forms of action,
procedurally embodied in the common law writs commencing legal proceedings,
provided the taxonomy of Anglo-American common law for over 700 years.
Maitland's annunciation of their death is known to virtually every student of the
history of Anglo-American law; it is perhaps as familiar as "honeste vivere,
alterum non laedere, suum cuique tribuere" is to those in the civil law tradition.
Writing at the beginning of the twentieth century, Maitland rhetorically lamented
the dismantling of the procedural writ system that defined substantive areas of law
and maintained a clear distinction between law and equity in the common law
system. This change occurred in England through piecemeal legislation in the
nineteenth century and especially through the sweeping procedural reforms of the
Common Law Procedure Act of 1852 and the Judicature Act of 1873.5 Despite the
removal of procedural difference and of particular labels for private law remedies,
the substantive distinctions left in the common law by the forms of action were
lasting and continue today. Thus, Maitland was quite correct to note the paradox:
the forms of action had been buried, but they continued and continue to rule the
common law.
Maitland's observation, published at the beginning of the twentieth century,
noted fundamental changes in the common law that came about in the nineteenth
century. Today, at the beginning of the twenty-first century, looking back at the
changes of the twentieth century, one may make a similar observation concerning
the place of the Code in Latin America. Thus, today this author paraphrases for
Latin America: "The Code Napoleon we have buried, but it still rules us from its
grave."
Just as the buried forms of action continue to structure and define AngloAmerican law, so too does the buried Code continue to rule Latin-American law.
This study will first briefly situate the Code in the development of Latin American
private law. After establishing the primary importance of the Code in the
development of nineteenth- and early twentieth-century Latin American law, this
study will then explore the present-day aspects both burying the Code and
permitting it to reign in Latin America's legal development and culture. Even in
the formative years of national Latin American law, the Code was not a monolithic
concept or text removed from interpretation, and it carried assumptions about legal
structure and method with it from the beginning. The paradox of its burial and rule
are not purely a modem phenomenon. Nonetheless, the sharp clarity of this dual
place of the Code in recent times is notable, and this study explores its
4. F.W. MAITLAND, THE FORMS OF ACTION AT COMMON LAW: A COURSEOF LECTURES 2 (A.H.
Chaytor & W.J. Whittaker, eds., 1936).
5. See id. at 7-8, 81 . For the United States, I have argued that this pivotal moment occurred later
than many would expect, in the mid-twentieth century. See M.C. Mirow, Legal History in the Law
School C11rric11l11111, in LEGAL EDUCATION FOR THETWENTY-FIRST CENTURY 187 (Donald 8 . King ed.,
1999).
Electronic copy available at: http://ssrn.com/abstract=956315
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BURJE D BUT RULING IN LATIN AMERJCA
181
manifestation.
I.
THE CODE NAPOLEON IN I N D EPENDENCE AND EARLY REPUBLIC LATIN AMERJCA
The fundamental influence of the Code Napoleon on Latin America's legal
development is unquestionable and clearly evident from contemporary sources.
Indeed, Latin American scholars have produced a fine body of work on the
codification of private law. These works underscore the importance of the Code in
the process of creating new national law for the new republics. 6
After independence, the new republics of Latin America sought to create new
law. The first wave of constructing new law occurred at the constitutional level,
with countries immediately drafting constitutions in order to replace colonial rule
with national structures. Drafters of these documents were often informed by the
political writings of European Enlightenment philosophers, the liberal Spanish
Constitution of Cadiz (18 12), and the Constitution of the United States of
America. 7 Legal reform in the creation of new republics was not limited to the
constitutional level; private law too needed to be recast to reflect the needs of these
new countries.
Rewriting and reforming private law was important for several reasons. First,
some aspects of private law were clearly inconsistent with the new forms of
republican government.
Nobility, slavery, special jurisdictions, and legal
disabilities of illegitimates, as well as the private law institutions linked to these
areas of law, had to be removed.8 Second, a unique body of private law was an
important step in creating national identity and consolidating state power in new
govemments.9 Indeed, many new constitutions made direct references to legal
reform, specifically codification. Third, the legacy of colonial private law was a
complicated and unwieldy mass of repetitive and conflicting sources. This conflict
6. See, e.g., CODIFICACl6N Y DESCODIFICACl6N EN H!SPANOAMERICA: LA SUERTE DE LOS
DERECHOS CASTELLANO Y PORTUGUES EN EL NUEVO MUNDO DURANTE LOS SIGLOS XIX Y XX (Bernard o
Bravo Lira & Ser gio Concha Marquez d e la P la ta eds., vol. I , 1998); ALEJANDRO GUZMAN BRITO,
ANDRES BELLO CODIF!CADOR: HlSTORIA DE LA FIJACI6N Y CODIFICACI6N DEL DERECHO CML EN
C HILE. (vols. I a nd 2, 1982); ALEJANDRO GUZMAN, HlSTORIA DE LA CODIFlCACl6N CIVIL IN
IBEROAMERICA (2000); CARLOS AUGUSTO RAMOS NUNEZ, E L C6DIGO NAPOLE6N!CO Y SU RECEPCI6N
EN AMERICA LATINA (1997); VICTOR TAU ANzoATEGUl, LA CODIFICACI6N EN LA ARGENTINA (18101870): MENTALIDAD SOCIAL E IDEAS J URlO!CAS ( 1977).
7.
See KENNETH L. KARST & KEITH S. ROSENN, L AW AND D EVELOPMENT IN LATIN AMERICA: A
CASE BOOK 43-44 ( 1975).
8. See MARIA DEL REFUGIO GONZAL EZ, ESTUDIOS SOBRE LA HISTORIA DEL DERECHO CIVIL EN
MEXICO DURANTE EL S!GLO XIX 44 (1981); JOSE LUIS SOBERANES FERNANDEZ, HISTORIA DEL
DERECHO MEXJCANO 115-63 (6th ed. 1998).
9. See !VAN J AKSIC, A NDRES BELLO: SCHOLARSHIP AND NATION-BUILDING IN NINETEENTHCENTURY LATIN AMERICA 156-8 1 (200 1);
J . VANDERLINDEN, LE CONCEPT DE CODE EN EUROPE
OCC!DENTALE DU Xll!E AU XJXE S IEGLE: EsSAl DE DEFINITION 223-25, 243 (1 967); CSABA VARGA,
CODIFICATION AS A Soc ro-H!STORI CAL PHENOMENON 334 (Sandor Eszeny i e t al. trans., 1991 ).
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°
led to desires for simple codes of applicable law. 1 Fourth, commerce, property,
and the legal system demanded sources and rules that would ease their operations
and establish their place in the new republics. 11
Despite these forces pushing for the reform of private law in the new
republics, true, effective, and lasting change was often delayed for decades. Most
countries in Latin America continued to refer to the private law as it existed on the
eve of independence, as modified by piecemeal rules enacted or decreed
intermittently after independence. This delay was mostly the result of the political
instability Latin American countries faced after independence. Civil wars and civil
strife reflected deep political differences in segments of the population of many
countries. Liberal and conservative notions of politics and society faced off
against each other, complicated by considerations of what form- federal or
centralized- governments should take.
'
In addition to the lack of politically stable governments, the treasuries of the
new countries were impoverished and resources for legal reform were scarce.
Government or self-appointed individuals and committees undertaking the task of
legal reform often moved forward without assurances of financial benefit.
The legal talent necessary for reform was also scarce. Able judges, lawyers,
and legislators were occupied with the immediate tasks of getting new
governments to run smoothly, rather than retreating to the drafting room to
consider various possible code sections for new national codes. Even finding the
right books to begin work on new private law could present insurmountable
difficulties. Early republic legal education was in the European ius commune
tradition, and with academic inertia and familiarity with current materials, there
was little pressure from professors to reform private law. As the cradle of
government, law schools were subject to political forces and governmental
supervision. For example, the introduction of the works of Jeremy Bentham into
the classroom met with governmental prohibition more than once. 12
Legal reform and codification could also be hindered by those holding vested
interests in the present system. Thus, holders of large properties feared that new
legislation might undo their carefully constructed arrangements, and the Church
feared the secularizing influences of legal reform on its jurisdiction and property.
In this environment, early attempts at codification for the most part failed to
make lasting and important changes in the sources of private law. Some countries
did draft and pass civil codes in the 1820s and 1830s. For example, the Haitian
Civil Code of 1825 is a nearly exact copy of the Code Napoleon .13 Similarly, the
Civil Code of Oaxaca (Mexico) of 1827-1829 appears to have been taken almost
entirely from the Code. 14 Nonetheless, it was not until the mid-nineteenth century
10. See Mirow, supra note I, at 90-94.
11. See JEREMY ADELMAN, REPUBLIC OF CAPITAL: BUENOS AIRES AND THE LEGAL
TRANSFORMATION OF THE ATLANTIC WORLD 1-1 5 ( 1999).
12. See Mirow, supra note I, at 99- 100.
13. See GUZMAN, supra note 6, at 191.
14. See id. at 198.
2005
BURlED BUT RULING IN LATIN AMERlCA
183
that conditions had improved so that codification of private law could be attained
with greater success. When conditions were better, individuals and committees
took up the call to provide codes of private law for the new republics.
Successful codifications of private law were often exercises in comparative
legislation. At the core of these exercises were the Code Napoleon and the
European commentary sources that quickly grew around the main text. This
however does not mean that Latin American countries merely translated and
borrowed the Code, article by article. Rather, the Code Napoleon provided the
structure and measure of the enterprise. The substantive rules adopted often varied
from the French provisions, and in drafting and explaining such provisions,
individuals noted the divergence from the French Code. Even at this early national
stage of Latin American law the Code, as text, was being buried as it was adopted,
adapted, translated, and placed in new codes. European scholars also noted the
successes and failures from their point of view of these new codes. For example,
Raul Guerin de la Grasserie criticized the Peruvian Civil Code of 1852 for its
systematic inexactitude and deficient classification, and Angel Osorio, President of
Madrid's Colegio de Abogados and Real Academia de Jurisprudencia commented
on reforms of Argentina's civil code. 15
Apart from the intrinsic appeal of the Code and its widespread acceptance
within world legal circles, its Frenchness made it particularly attractive to Latin
Americans in this crucial period of Latin American codification, during the second
half of the nineteenth century. French culture ruled Latin American culture and the
elite of Latin America were a Francophone elite. Despite Latin American
admiration of Anglo-American economic and political successes, ruling classes of
Latin America intellectually aligned themselves with the French intelligentsia and
saw French progress somehow more in tune with Latin American cultural and
societal aspirations. This allegiance was true despite French military action in
Mexico in 1838 to collect debts and France's occasional blockades of the River
Plate in the first part of the nineteenth century. 16 The French installation of
Maximilian and Carlota in the 1860s in Mexico further complicated the place of
France in the nineteenth-century Latin American mind. 17
With this environment in mind, we may consider the work of Andres Bello as
a brief example of the Latin American codification of civil law. Bello drafted
perhaps the most influential code in the development of Latin American private
law, the Chilean Civil Code of 1855. 18 For the law of contracts and obligations,
Bello expressly stated that he followed the law of the French Code, and this
author's own research indicates Bello followed the Code Napoleon in other areas
15. See Carlos Rodriguez Pastor, Vida, pasiim y muerte de las codificaciones, in LIBRO
HOMENAJE A ULISES MONTOYA MANFREDI 6 11 , 613 ( 1989).
16. See THOMAS E. SKIDMORE & PETER H. SMITH, MODERN LATIN AMERICA 358-61 (5th ed.
2000).
17. See MICHAEL C. MEYER ET AL., THE COURSE OF MEXICAN HISTORY 374-86 (6th ed. 1999).
18. See, e.g., GUZMAN BRITO, supra note 6; JAKSIC, supra note 9, at 156-81; M.C. Mirow,
Borrowing Private Law in Latin America: Andres Bello 's Use of the Code Napoleon in Drafting tire
Clrilea11 Civil Code, 61 LAL. REV. 291 (2001).
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VOL. 33:2
of his code as well. Nonetheless, in style, Bello found the Code too brief, and
opted for greater specificity and illustrative language in his code. 19 Indeed, in
pressing for codification in Chile, Bello translated and published works of Portalis
concerning codification in France.2 French commentary sources were essential in
Bello's project as well. Alejandro Guzman writes, "Entre los autores extranjeros,
llevaron su preferencia los franceses Devincourt, Rogron y sobre todo Pothier en
sus diversos Traites; tambien emple6 a Merlin, Favard de l 'Anglade, Portalis y
Maleville ... Troplong, Duvergier, Toullier, Delangle y Duranton."21 Bello's code
is an important example because it was adopted widely in the region and served as
a model for the civil codes of other Latin American countries.
°
Bello was, of course, not alone in looking to the Code Napoleon as a
fundamental source for national codification in Latin America during the midnineteenth century. The French Civil Code was an important source for other
influential codes in Latin America, such as Teixeira de Freitas's Brazilian Code,
Esbo90 do C6digo Civil, from the 1860s and Dalmacio Velez Sarsfield's Argentine
Civil Code from the same period.22 French commentary sources continued into the
first part of the twentieth century as interpretive tools and as guides for domestic
treatises on civil law. 23
From the mid-nineteenth century to the mid-twentieth century, the French
Code and its commentary sources provided many of the core concepts and
methodologies of private law in Latin America. In a collection of reported oral
histories of well-known Venezuelan legal practitioners conducted in the late 1970s,
lawyers recall their studies in the 1920s and 1930s and note the use of the
following as texts for legal study during the period: Ortolan, Petit, Pradier Fodere,
Planiol y Ripert, Demolombe, Aubry y Rau, Baudry Lacantinerie, Colin, and
Capitant. 24 The sources used by Luis Felipe Urbaneja in the course of his studies,
practice, and teaching also illustrate this reliance. As a law student at the
Universidad Central de Venezuela from 1926 to 1934, Urbaneja recalled: "We
learned by the textbook, which I estimate gave us no less than 80 percent of our
knowledge. The texts were almost always in French or Italian, languages that we
had learned to read in our bachil/erato, above all French."25
The central place of the Code Napoleon in Latin American private law has
been noted by many. The regional importance of secondary sources commenting
on the Code is less well documented, but nonetheless, equally established. Thus,
the Code and its method of structuring the law were a primary influence on the
development of Latin American private law. This study, however, does not seek to
19. See Mirow, s11pra note 18, at 302.
20. See Portalis, Lejislaci611: Disc11rso preli111i11ar de/ proyecto de c6digo civil de Fra11cia, El
Ara11ca110, Aug. 17, 1833, at 2.
21 . See GUZMAN, supra note 6, at 243.
22. See id. at 296-301 , 334-36.
23. See ANZOATEGUI, supra note 6, at 113.
24. See ROGELIO PEREZ PERDOMO, Los ABOGADOS EN VENEZUELA: ESTUDIO DE UNA ELITE
INTELECTUAL Y POLITICA, 1780-1980, 359, 377, 389 (1981).
25. Id. at 376.
2005
BURIED BUT RULING IN LATIN AMERICA
185
reexamine proof of the influence of the Code Napoleon on national codifications
and on subsequent legal developments. Rather, given the importance in Latin
America of the Code and other French sources from the mid-nineteenth to the midtwentieth centuries, this study now addresses the factors weakening the impact of
the Code and those factors keeping its force alive.
II. THE CODE NAPOll?ONBURIED
In the past few decades Latin American private law has undergone substantial
independent changes that have served to bury the Code in the region. Some forces
driving these changes are common to many other civil law countries where the
limits of national codification are facing demands from expanding subject matters,
decodification, and globalization.26 Other forces driving these changes have been
unique to the region. International political and economic forces realigning Latin
American interests, economies, and thought in the twentieth century have directly
affected the development of private law in the region. Although the United States
has been an actor in several of these developments, its influence should not be
given too great an emphasis in seeking the reasons why the Code has become
buried. Nonetheless, because the United States' influence preceded many of the
other influential factors, it is treated fust in this study.
Perhaps the most important political factor was World War II. This war
created political, economic, and intellectual shifts in Latin America's relationship
with other countries of the world. While the direction of European law in general
was altered by the war, it was altered even more so from Latin America's
standpoint as communication between European and Latin American countries was
substantially curtailed. The war interrupted trade between Europe and Latin
America, and the influences that came with the status of trading partner waned for
Europe. Even though French influences on Latin American culture and thought
continued strongly into the first part of the twentieth century, they competed with
and were displaced by a growing U.S. cultural presence that had begun to enter
Latin America even before World War II. In the first half of the twentieth century,
the United States' national security concerns prompted it to assert its policies and
influence with greater strength in the region. By 1945, Germany and Italy had lost
all credibility in Latin America, and England and France were too weak from the
war to carry on meaningful foreign influence in the region. The United States thus
became the main foreign influence in Latin America. 27 With hemispheric interests
in mind shortly after World War II, the Treaty of Rio led to the Organization of
American States (OAS).
Latin America's legal world reflected these broad political, cultural, and
intellectual shifts. In light of the OAS, some U.S. law schools began to offer
programs for Latin American law students and lawyers to foster greater
understanding and economic ties between the two legal communities. For
example, in 1947, major U.S. corporations sponsored the Inter-American Law
Institute at New York University. This support provided fellowships for
26. See MERRYMAN, supra note 2, at 151-58.
27. See SKJDMORE & SMITH, supra note 16, at 367-68.
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DENV. J. INT'L L. & POL'Y
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"outstanding young lawyers from the countries to the south to spend an academic
year in the United States to study the Anglo-American legal system."28 By the
time Venezuelan law student Urbaneja became a professor, teaching civil law from
1939 to 1950, he regarded his contributions as spearheading a movement away
from the rhetorical tradition of the French commentators toward the use of
practical cases "in the style of the North American method created at Harvard by
Langdell."29 This comment is illustrative of a regional shift in mentality about
foreign influences in Latin American legal education, and thus in Latin American
law generally. This shift from European to U.S. influence lessened the importance
of the Code Napoleon in Latin America.
Perhaps equally as important as World War II, the Cold War established U.S.
interest in influencing legal change in Latin America. U.S. policy makers saw
economic and social development as the tool to inoculate the region from
international Communism. Development was linked to law and legal systems, and
U.S. law professors advanced the Law and Development Movement in many
countries of Latin America during the 1960s and 1970s. This well-meaning
exercise in sharing expertise focused on changing methods of legal instruction,
remodeling the lawyer into social engineer and problem solver, and instilling rule
skepticism along the lines of American legal realism.Jo For instance, in the
classroom the movement sought to replace the model of part-time eloquent and
distinguished professors lecturing on code provisions with a model of interactive,
"Socratic," and clinical experiences for students. The reasons for this movement's
failure are varied, and in some instances it ushered in a backlash to more
traditional methods and expectations in legal education. For example, one dean of
a Colombian law school who had embraced such changes was "replaced by an
older French trained attorney" who cast off the newer trends.JI For the most part,
however, this movement did effect some changes that shifted Latin American law
farther away from European methods and the Code Napoleon. These changes
included advancing sociological critiques of legal formalism, instilling a more selfreflective approach to legal education in the region, and fostering numerous
interpersonal connections ·between Latin American and U.S. educators that would
Hence, with the Law and
create long-standing academic relationships.J2
Development Movement we find another factor serving to bury the Code
Napoleon.
The United States' attempts to influence Latin American legal change did not
stop with the Law and Development Movement. Indeed, after a brief respite and
period of regrouping, U.S. legal academics-many supported by the same
28. PHANOR J. EDER, A COMPARATIVE SURVEY OF ANGLO-AMERICAN AND LATIN-AMERICAN
LAWxi(l950).
29. See PERDOMO, supra note 24, at 379.
30. See JAMES A. GARDNER, LEGAL IMPERIALISM: AMERICAN LA WYERS AND FOREIGN AID IN
LATIN AMERICA 4 ( 1980).
31. DENNIS 0. LYNCH, LEGAL ROLES IN COLOMBIA 116 (1981).
32. See generally Jorge L. Esquirol, Continuing Fictions of Latin American Law, 55 FLA.
41 (2003).
L. REV.
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BURlED BUT RULING IN LATIN AMERICA
187
organizations behind the Law and Development Movement- advanced a program
best described as the Rule of Law Movement. In recent decades, U.S. lawyers and
professors have mostly advised governments on institutional changes that would
better their administration of justice. Initiatives have included: studying the
judiciary and court systems and making recommendations for increasing their
independence; improving the training of government lawyers, judges, and other
personnel; increasing the efficiency and transparency of legal proceedings; and
making changes in legal education.33 This academic and practical emphasis on
institutional and procedural aspects of law, rather than the content of its
substantive provisions, has also served to lessen the importance of the Code and its
method.
In addition to, and concurrent with, the prominence of United States models
and influences, international investment in Latin America and the globalization of
legal practice have led to sidestepping domestic law and national legal systems.
One aspect of globalization has been to reduce the importance of individual
nations. A result of the diminution of the importance of individual states is a
diminution in the importance of their domestic codes, including the civil codes of
each country. Thus, in a legal world without borders, codes that indirectly support
the autonomy of nation-states are less important.34 With regional agreements on
international economic law and related matters, such as the North American Free
Trade Agreement (''NAFTA"), the Andean Community, MERCOSUR, and the
Free Trade Area of the Americas ("FTAA"), Latin American domestic law has
become subjected to international norms and ideas that diminish the importance of
domestic law in these areas oflaw, though the effect has been slight in the realm of
private law. 35
The effect is not limited to trade and related matters. In recent decades,
international lawyers have put forth various consensus views of how transactions
related to business and property ought to be conducted, structured, and
documented.
Some have argued that globalization really means North
"Americanization," as Wall Street and Washington lawyers further the legal
hegemony of the United States throughout the world.36 Business and property
related transactions typically provide governing rules by contract or choice of law
prov1s1ons. Thus, in such transactions, domestic law becomes increasingly
irrelevant. If domestic law becomes increasingly irrelevant, the underpinnings of
domestic law, e.g. the code, become less important.
Consequently, the
globalization of business law serves to bury the Code.
33. Alfredo Fuentes-Hernandez, Globalizatio11 alld Legal Education in Latin America: Issues for
Law and Developmellt ill the 21st Ce11111ry, 21 PENN Sr. INT'L L. REV. 39, 43-47, 51-59 (2002).
Funding for such initiatives has also come from the World Bank. Joseph R. Thome, Headi11g South but
Looki11g North: Globalizatio11 a11d Law Reform ill Lati11America,2000 WIS. L. REV. 691, 697.
34. CARLOS AUGUSTO RAMOS NUNEZ, CODIFICACI6N, TECNOLOGIA Y POSTMODERNIDAD: LA
MUERTE DE UN PARADIGMA 56-68 (2000).
35. H. Patric k Glenn, Harmo11y of Laws i11 the Americas, 34 U. MIAMI INTER-AM. L . REV. 223,
230-31 (2003).
36. Ugo Matte i, The Issue of Europeall Civil Codificatio11 a11d Legal Scholarship: Biases,
Strategies and Developments, 21 HASTINGS INT'L & C OMP. L. REV. 883, 888 (1998).
188
DENV. J. lNT'L L. & POL'Y
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As another product of globalization, Latin America has rapidly adopted
systems of alternative dispute resolution, particularly in resolving private law
disputes. Thus, traditional tribunals can be avoided by the use of mediation and
arbitration. Where such methods of dispute resolution are employed, decision
makers may turn to various substantive rules of decision, including rules
contractually agreed to by the parties and rules from other legal systems. They
may also decide disputes without recourse to any particular legal rule. Thus, with
the use of alternative dispute resolution, the importance of national code provisions
and their application dwindles.
Factors burying the Code have not been exclusively external, such as those
resulting from U.S. or international pressure. Many factors are either indigenous
developments or internal changes commonly found in other civil law systems.
Addressed next, these factors include the development of a strong and reliable
body of indigenous commentary literature, the growth of case law as a source of
law, various aspects of decodification, and the phenomenon known as
"recodification."
Since the beginning of the twentieth century, lawyers and legal academics in
many Latin American countries have provided highly specialized commentary
sources on their own national codes. These works have, in effect, replaced the
more standard, yet often more general, French and other European works
commenting on the civil law. While these Latin American works may continue to
cite occasionally the European masters of the Code, they rely much more on
national and even other Latin American treatise writers for authority. For example,
a recent text on testamentary succession from Colombia included references to
Baudry-Lacantinerie, Demolombe, and Planiol y Ripert. Nonetheless, these
references are dwarfed by references to the works of Chileans Claro Solar (1945)
and Somarriva Undurraga (1961), and of Colombian Carrizosa Pardo (1961).37
Indeed, treatises produced in countries of the region with leading legal publishers
such as Argentina, Chile, and Mexico are often used as authoritative texts in other
countries, and these have replaced older translations of French and other European
commentaries. 38
The growth of case law, precedent, and even the doctrine of stare decisis have
also served to bury the Code. Cases, as both interpretational tools and sources of
law, have gained ground in areas once ruled exclusively by civil code provisions.39
A common example in Latin America, and perhaps in the entire civil law world, is
the growth of tort law.40 As cases expand and explain code provisions, the
autonomy of the code as sole source of substantive law is eroded.
37. See ROBERTO SUAREZ FRANCO, DERECHO DE SUCESIONES 451-54 {2d ed. 1996).
38. See Alejandro M. Garro, Unification and Harmonization of Private Law in Latin America, 40
AM. J. COMP. L. 587, 612 (1992).
39. See RAMOS NUNEZ, supra note 34, at 86; Arthur T. Von Mehren, Some Rejleclions on
Codification a11d Case Law in the Twenty-First Century, 31 U.C. DAVIS L. REV. 659, 667-70 ( 1998).
40. See generally Jonathan A. Miller, Products Liability in Arge11ti11a, 33 AM. J. COMP. L. 611
(1985); Natalia M. Bartels & M. Stuart Madden, A Comparative A nalysis of United States and
Colombian Tort Law: Duty, Breach, a11d Damages, 13 PACE INT' L L. REV. 59 (2001).
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BURIED BUT RULING fN LATIN AMERICA
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Cases as sources of law have also gained significant ground through the
growth of constitutional law in Latin America. The Code is yielding its primacy in
the area of constitutional law. Thus, as in Europe, the constitutionalization of
Latin American law has created a methodological shift for lawyers and judges in
Latin America.41 Constitutional law is judicial interpretations of constitutional
provisions, often by constitutional courts. Constitutional law is, therefore, case
law, which in this context has led to the development of notions of precedent and
stare decisis.
Along with the heightened attention constitutions have recently received, the
allied areas of effective courts, human rights, and individual rights have also
garnered significant academic attention.42 Constitutional law, particularly the
procedural devices that many Latin American countries are offering their citizens
to enable them to challenge actions on constitutional grounds, has served to
increase the power of judges and reduce the formalism often instilled in judges by
traditional civil law training.43 With the growth of constitutionally based actions,
many judges, not just the judges of constitutional courts, are deciding the
constitutionality of state, and even private, actions. With such actions, judges
make constitutional law to apply to their cases. Cases, whether as newly
introduced tools of interpretation for traditional areas of civil law or as new
products of constitutional law, are burying the Code in Latin America.
Another development related to the sources of law and incorporating the idea
of decodification follows from the increasing number of sources generally, and
even the growing number of codes. 44
The idea behind this process of
decodification is that the traditional structure of the Napoleonic Codes no longer
serves as a useful organizational device because of the complexity and volume of
new legislation.45 As the number of areas requiring legislative action increases,
these new topics often do not find their home within the structures of the civil
code, or even the traditional codes. For example, Latin American law experienced
the beginning of this decodification process with labor law, agrarian reform,
mining law, and family law. ~egislation affecting these areas was just too large
and complex .to be incorporated into existing codes and resulted in the creation of
41. See NATALINO IRTI, LA EDAD DE LA DESCODIFICACl6N 63-65, 93-106 (Jose! Maria Bosch ed.,
L. Rojo Ajuria trans., 1992) (originally titled L'ETA DELLA DECODIFICAZIONE, 1979).
42. See Kirsten Maloy Carlson, Premature Predictions of Multiculturalism?, 100 MICH. L. REV.
1470 (2002) (reviewing DONNA LEE VAN COTT, THE FRIENDLY LIQUIDATION OF THE PAST: THE
POLITICS OF DIVERSITY IN LATIN AMERICA(2000)).
43. See Bernardino Bravo Lira, Estudios de derec/10 y cultura de abogados en Chile 1758-1998:
tras la Jruella ius commune, la codificacion y la descodificacion en el Nuevo Mundo, 20 REVISTA DE
ESTUDIOS HIST6RtCO-JURfDICOS 85 (1998); Luis Diez-Picazo y Ponce de Leon, Codificacion,
descodificacion y recodificacion, 45 ANUARIO DE DERECHO CIVIL 473, 480-81 ( 1992).
44. See generally id.; Maria Luisa Murillo, Tire Evollllion of Codification in tire Civil law legal
Systems: Towards Decodification and Recodijication, 11 J. TRANSNAT'L L. & POL'Y 163 (2001); see
also IRTI, supra note 41 (defining the tenns "decodification" and "microsystems"); Miguel Acosta
Romero, Elfe116meno de la descodificacion en el derec/10 civil, REVISTA DE DERECHO PRIVADO, JulyAug. 1989, at 61 1; Alejandro Guzman B., Codificacion, descodificacion y recodificacion def derec/10
civil cl1ileno, 90 REVISTA DE DERECHO y JURISPRUDENCIA y GACETA DE LOS TRIBUNALES 39 (1993).
45. See Diez-Picazo, supra note 43, at 478-79.
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new, separate codes. Additionally, new areas of law, such as laws for minors,
environmental law, corporate compliance, securities regulation, and the insurance
industry, require very detailed rules and administrative procedures established
under "legislative microsystems." With the appearance of these new codes and
microsystems, the importance of the code structure diminishes. 46
In addition to multiple sources of law leading to decodification, some have
also viewed the introduction of new technologies as contributing to the process.
For instance, tying the book, the nation state, and the code together as coworkers in
modernity, Ramos NUfiez argues that the CD-ROM, the Internet, globalization, and
a new non-code based ius commune symbiotically lead to the beginning of a
47
postmodern era, destroying a past paradigm of Latin American law. This shift is
probably not unique to Latin America, but may also be observed throughout the
civil law world.
While decodification has been a common shift in all systems based on codes,
Latin American law has also been subject to legislation and microsystems that are
products of their particular populations. Legislation and institutions established to
protect and promote native populations are being advanced and enacted in almost
every country of the region. 48 Because many of these developments are guided by
international models and organizations, such legal pluralism in Latin American
countries lessens the importance of the traditional single codified law. 49 Thus, in
addition to the common elements of decodification found in most civil law
systems, legislation directed at the indigenous populations of Latin America has
helped to bury the Code in the region.
In summary, various legal changes have served to remove the Code from
importance in the course of Latin American private law. The Code had a high
place in Latin American law of the nineteenth century. It provided a guiding
structure for legal thought, development, institutions, and education. Nonetheless,
its taxonomic power has decreased and more areas of law are found outside the
application of its provisions. The passage of time and numerous elements have
served to reduce the importance of the Code, particularly in the past fifty years.
Some of these elements came from early outside influences such as the United
States, although these may not be of primary importance. Some of these elements
have been specific to Latin America, while others have been changes shared by
civil law jurisdictions generally, and still others are the product of global economic
change. Each of the changes described above has served in some way to bury the
Code.
46. See RAMOS NUNEZ, supra note 34, at 26, 50.
47. See id. at 31-91.
48. See Siegfried Wiessner, Rights a11d Status of Indigenous Peoples: A Global Comparative and
International l egal A11a/ysis, 12 HARV. HUM. RTS J. 57, 74-89 (1999).
49. See Maria Luisa Bartolomei, The Globalizalio11 Process of Human Rights in Latin America
Versus Economic, Social and Cultural Diversity, 25 INT'L J. LEGAL INFO. 156, 173-79 (1997); John A.
Mills, legal Co11stn1ctio11s of Cultural Jde11tity i11 Latin America: An Argumelll Against Defining
"!11dige11ous Peoples", 8 TEX. HISP. J.L. & POL'Y 49 (2002).
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BURIED BUT RULING IN LATIN AMERICA
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Ill. THE CODE NAPOlEONRULES
Despite the forces working to bury the Code, it rules from its grave. When
forced to give one-sentence descriptions of their legal systems, Latin American
lawyers will still assuredly assert that theirs is based on the Code Napoleon. The
Code rules as a symbol and unifying structure of the law. The Code represents a
paradigm of law, a mentalite, and a talisman. Indeed, it is not so much the
particular French Civil Code of 1804 that continues to rule, but rather what the
Code Napoleon stands for and what the Code's progeny is in terms of substantive
law and legal method in the region. In broad terms the Code stands for the virtues
of codification: rationality, progress, pedagogy, and utopia.50 The Code is
emblematic of principles of law and justice within the positivist legal tradition.
The paradigmatic function of the Code has its roots in history, and its authoritative
quality and nostalgic call continue today in Latin America and the world. George
P. Fletcher has recently grouped the Code with the U.S. Constitution and the
German Civil Code of 1900 as one of the "three nearly sacred books in Western
law."51 The intervening modifications by translation, by early drafters, and by
subsequent legislators and executive decrees are inconsequential to one describing
the nature of Latin American private law. After nearly two centuries of
autochthonous legal change and modification, the French Code rules. Its authority
reaches across these changes and modifications. It is, indeed, a powerful text.
In many ways, the Code continues to serve a taxonomic function as the
intellectual superstructure upon which all legal thought is built. Its structure
continues to rule the structure of the law, just as the forms of action continue to
rule (often silently) the common law. As Fletcher observes, "The code is supreme
not in its language, not in the hierarchy of the legal system, but in the framework
of thought that guides the mind of the French jurist."52 Similarly, Pierre Legrand
has observed, "[a] civil code is the grammar of the law."53 For Latin America,
Alejandro Garro has noted that the Code "provided lberoamerica with a legal
glossary followed by Andres Bello in his Chilean Civil Code, Velez Sarsfield in
his Argentine Civil Code, and by the drafters of the Spanish Civil Code."54 Thus,
on this taxonomic level, it is a grammar, a glossary, a mentalite that continues
today.
The substance and structure of the code have also dictated certain forms of
institutions that have become established in the region. As a result, the nature of
the code and its subject matter has dictated a certain place for the judiciary and the
nature of tribunals, not only by substantive area, but also in approach to judicial
decision-making.55 Thus, the role and function of courts in Latin America were
50.
51.
52.
53.
(1994).
54.
See Diez-Picazo, s11pra note 43, at 474-78.
George P. Fletcher, Three Nearly Sacred Books i11 Wes/em law, 54 ARK. L. REV. I, 2 (2001).
Id. at 12.
Pierre Legrand, Stra11ge Power of Words: Codificatio11 Sit11ated, 9 TUL. EUR. CIV. L.F. I, 4
Alejandro M. Garro, 011 Some Practical /111plicatio11s of the Diversity of legal C11l111res for
lawyering the Americas, 64 REV. JUR. U.P.R. 461, 469 (1995).
55. See JEAN-LOUIS HALPERIN, HISTOIRE DU DROIT PRIVE FRAN<;AIS DEPUIS 1804 52-56 (!st ed.
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established in a period before the burial of the Code, and these courts and their
methods of deciding cases continue today in Latin America.
Similarly, the structure of legal education continues for the most part in the
continental, French tradition. Indeed, in many countries of the region the Code
defines the structure of the curriculum. Just as the forms of action still distantly
define the contours of the first-year curriculum in the United States, so too does the
Code establish borders between some of the required courses of Latin American
law schools. Courses may be entitled "personas," "bienes," "obligaciones" and
"succesiones" following code divisions, and students carry their versions of the
code with them to class. The method of education continues in the tradition of the
Code with the bulk of instruction based on lectures about code provisions. The
language used is precise and erudite, and law lectures are a particular genre with
their own style, vocabulary, and delivery. The performance aspects of teaching
follow European lines, and student participation is for the most part limited to
note-taking and admiration. In the classroom, the Code rules.
In the Latin American legal mind, th!: Code,. st~nds for and perpetuates
continuity with Enlightenment Europe and orderly, liberal, powerful states. The
Code, particularly through its important European conmwntators, provides cultural
and linguistic links between Latin America and Europe that will continue
throughout this century. Latin Americans, when challenged by Anglo-American
lawyers, invoke the Code as a basis for their legal system, asserting legal, cultural,
and political superiority. It is an assertion of Latin American continuity with a
great European tradition. The Code paradoxically stands for both "antiquity
greater than the common law," because its roots are in Roman law, and "modernity
and rationality," because it is product of nineteenth-century France. Mention of
the Code ties Latin America to its own and to Europe's ius commune. To invoke
the Code is to invoke Europe, and to invoke Europe is to chart certain aspirations
of Latin America in political and economic terms. As Jorge Esquirel has pointed
out, "Latin American societies are not European, only their jurists pretend to be.
The notion of Europeanness is rather a political aspiration. Its goal is assimilating
illiberal Latin America to the culture of European democracy."56 Similarly, to
invoke the Code Napoleon is to affirm the Europeanness of Latin American law
and thus to elevate the cultural and political position of Latin America in the
western world view.
By linking Latin American law with Europe, Latin American lawyers not only
include their countries in the European tradition, but also exclude their countries
from the legal, cultural, political, and economic realm of the United States. By
embracing European law, Latin American lawyers construct barriers to the United
States. Facile references to the Code become a short-hand method of establishing
"otherness" from the legal system and the perceived hegemony of the United
States. References to the French Code may even imply linguistic ties of the
Romance languages which similarly serve to include Europe and to exclude the
1996).
56. Esquirol, supra note 3, at 470.
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BURIED BUT RULING IN LATIN AMERICA
193
United States. Just as the process of codification is political, so too is the
continued appeal of a code. Thus, as a political symbol, the Code rules from its
grave.
Related to the code's Europeanness is its general place in history in the
popular and legal mind. Beyond authority through the ages and authority through
reason, the Code also rules through nostalgia. The assertion that Latin American
law is based on the Code Napoleon recalls a pre-war, European-aligned past. The
days when Latin American law was governed by the Code and its methodology
were, in nostalgic terms, simpler days for the law and for the people. The very
mention of the Code imports thoughts of the days of the great national codifiers
and commentators, of days b~fore present problems and complexities. The Code,
as text, has also been seen as an important method of conveying the content of the
law beyond classroom and courtroom to laypeople. The notion, in theory if not in
practice, that the provisions of the Code should be non-technical and available for
lay understanding is another important way the Code continues its reign. 57
Even on the level of substantive rules, the inverse of decodification, with its
new codes and microsystems, can be observed. This process is labeled
"recodification." Some . legal areas that for social or economic reasons were
seperated from the core of the civil code have now returned, either as new
provisions within the ambit of the code or because these areas of law have been
removed from the extensive legislation they once demanded under prior
governmental policies. 58 This is particularly true where Socialist legislation has
been erased as part of capitalist reforms. Thus, employment contracts may return
to the jurisdiction of the civil code as a contract for services and residential leases
for urban housing may return to the civil code as just another kind of lease.
Nonetheless, some have noted that the idea of recodification is artificial. Once
legal rules have been established in systems outside the code, the return of these
subject matters to the civil code does not reinvigorate the code. This is particularly
true in areas of the law once governed exclusively by the code, but now subject to
administrative oversight and i~stitutions. 59
While the forces of globalism have for the most part served to bury the Code,
the effects of internationalization on private law have served to keep the Code
ruling in the mind of Latin American lawyers. Those involved in codifying private
international law on a national level have seen this process as an outgrowth of the
civil code. 60 On the European level, in the movement towards a European Civil
Code, Ugo Mattei identified one group of contributors as representing a "highly
homogeneous European legal academic elite" who seek to steer the project with
57. See ROBERT CHARLES MEANS, UNDERDEVELOPMENT AND THE DEVELOPMENT OF LAW:
CORPORATIONS AND CORPORATJON LAW IN NINETEENTH-CENTURY COLOMBIA 272 ( 1980).
58. See generally Murillo, supra note 44.
59. RAMOS NUNEZ, s11pra note 34, at 82-85.
60. See Paul Lagarde, S11r la non-codification du droit international prive fra111;ais, 25 SYRACUSE
J. INT'L L. & COM. 45 (1998) (describing the mid-twentieth century attempts); Fran~ois Rigaux,
Codification ofPrivate International Law: Pros and Cons, 60 LA. L. REV. 1321 (2000).
194
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Roman law reins. 61 Indeed, those advancing the European Code project seem to
press for individual national civil code methodologies and structures.62 Similarly,
Latin American countries are represented in the International Institute for the
Unification of Private Law (ten ofUNIDROIT's 58 member countries are from the
region), the United Nations Commission on International Trade Law (six of
UNCITRAL's 36 member countries are from the region), and the Hague
Conference on Private International Law (eight of 64 member countries).63
Regional developments in private international law are somewhat more limited
when compared to the efforts of UNIDROIT, UNCITRAL and the Hague
Conference, but the focus of these undertakings often follows the traditional Code
method of larger projects.64 The basis for the construction of private international
law is one that shares much with the tradition of nineteenth-century codification on
the domestic level. Thus, assumptions about both method and substance in the
creation of private international law are based in the code and comparative
legislation. In private international law, the Code continues to rule.
Numerous factors in Latin America have served both to bury the Code and to
keep it ruling in the minds of lawyers and in the life of the law. The contemporary
existence of these factors has led to a tension that will continue into the twentyfirst century in the region. Writing about Peru in 2000, Ramos Nunez stated:
The death of codes, however, has not yet come. Perhaps the end is near. A
paradigm so interior to the conscience of lawyers does not pass away only once,
but during a Jong historical process.
According to Kuhn, there are
circumstances, although rare, in which two paradigms can coexist peacefully.
Surely, we find ourselves in that rare conjuncture at which the code is not
. d.1tseIf to o bl'1v1on.
. 65
res1gne
The paradox of two paradigms continues. In practice, the Code has been buried; in
institutions, structures, and mentalite, the Code rules. Indeed, we have buried the
Code Napoleon, but it still rules us from its grave.
61. Mattei, supra note 36, at 885-86, 894-98.
62. Pierre Legrand, Codificatio11 a11d the Politics of Exc/usio11: A Cha/le11ge for Comparativists,
31 U.C. DAVIS L. REV. 799 ( 1998); see Mattei, supra note 36, at 894-98.
63. Fuentes-Hernandez, supra note 33, at 50-51; see also Hague Conference on Private
International Law, Member States, at http://www.hcch.e-vision.nl/index_en.php?act=states. Listing
(last visited Sept. 24, 2004).
64. See Garro, supra note 38; Paul A. O'Hop, Jr., Hemispheric /111egratio11 and the Elimi11atio11 of
Legal Obstacles under a NAFTA-Based System, 36 HARV. INT'L L.J. 127, 164-66 (1995); see also
Consejo Perrnantente de la Organizaci6n de los Estados Americanos, Comisi6n de Asuntos Juridicos y
Politicos, Co11fere11cias .Especializadas !11teramerica11as sabre Derecho J111emacio11al Privado: fllforme
y co11c/usio11es, at http://scm.oas.org/doc_public/SPANISH/HIST_ 03/CPI 1200S04.doc (Apr. 17,
2003).
65. RAMOS NUNEZ, supra note 34, at 91.